March 6, 2004

Notice anything new? I've abandoned "Bluebird," out of the blue, in another feeble step into the comprehension of html. These colors, they're all just numbers. Mmmm, B1629F is lovely! Perhaps a little F3BO44 would be nice.

Now if only I could figure out how to upload my own scanned things somewhere so I could display them here. Any recommendations? I tried to set something up at freewebspace.com but got discouraged. It didn't seem that I could upload images free. Apparently, there's some damn thing you can do free there, but it doesn't seem to be what I want. I bought this book and will try to learn some more things. What I really want to do is to redesign the page and get a nice image in the banner, but that may take some time.

Another labyrinthine defense of a Kerryism.Here's my earlier one, which I corresponded with Zachary Roth at CJR Campaign Desk about (and he was not buying). Watch now while I attempt to dig Kerry out of another ridiculous hole. Here are two quotes, embarrassingly juxtaposed on the front page of today's NYT:

On Feb. 5, Mr. Kerry reacted to Massachusetts' highest court's decision legalizing same-sex marriages by saying, "I personally believe the court is dead wrong." But when asked on Feb. 24 why he believed the decision was not correct, he shot back, "I didn't say it wasn't."

These two statements can be harmonized. In the Feb. 5 statement, Kerry used the expression "I personally believe," whereas in the Feb. 24 statement, he was answering a question about what he "believed." Arguably there is a difference between "believing" something and "personally believing" something. Perhaps, "personal belief" relates more to instinctive feelings a person has. This is particularly notable since in the first statement the belief is about the decision being "wrong," while in the later statement, he's responding to a question about whether the decision is "correct." There are subtle distinctions between the instinctive, personal feelings about whether permitting gay marriage is right or wrong, and the more intellectual, lawyerly analysis of whether a judicial decision is incorrect. Kerry could thus have "personally believed" that the decision was "wrong," by simply feeling his own emotions, and the use of the heated expression "dead wrong" strongly suggests that this was the nature of his Feb. 5 statement.

To have a belief about whether the decision was "correct," however, he would need to study the relevant state constitutional text and the case law of the Massachusetts courts and engage in some elaborate reasoning, which he has not done. Thus, he could correctly assert on Feb. 24 that he had never said that he believed the decision was incorrect. The reporter was asking him to explain why the decision was incorrect, and, not having studied the law, he was in no position to respond with any legitimate legal analysis. Yet, his personal belief that gay marriage is wrong had led him earlier to a genuine "personal belief" that the state court was doing something that was "dead wrong."

"The 'Performance of Her Career' Is Now an Academy Award Winner." So reads the new, post-Oscars ad for Cold Mountain, which features a photo of Renée Zellweger in her ceremonial swaddling clothes, clutching the little statue. I was going to criticize the writing: in trying to use that quote, "performance of her career," they ended up having the wrong subject to the sentence, "performance" instead of "Renée Zellweger."

But the award really is for "Best Performance by an Actress in a Supporting Role." Sean Penn had the line in his thank you speech, "There are no best actors." But there are no Best Actor Oscars. That's just shorthand. The Oscar he held in his hands was for Best Performance by an Actor in a Leading role. So to be accurate, the actors ought to say:

"I'm happy to accept this award on behalf of my performance, which is unable to be here tonight and in any event, incapable of holding a statuette."

Oh, and the dog's name is Dylan, so presumably, it's black, it's a pedantic mongrel, it's got his bone in the alley, it licks her face when she sleeps, it's collar's from India, it means more to her than a dead lion, and it's barking and running free.

I don't know there is going to be a next book. I think maybe some sort of a cartoon history of the court. That has been done, but it's not been done with a very good text. I've always enjoyed cartoons. That's one of the things I would like to have been able to do, I would like to have the ability to draw.

He adds that he can't do the drawings himself, so let me say, I went to art school (long ago), and I've done some cartooning over the years and have quite a collection of artistic comic books. Now that I'm figuring out how to do images here, I'll try to put some of my pictures up at some point. One of my most elaborate ones involves Justice Blackmun and his statement, "From this day forward, I no longer shall tinker with the machinery of death."

That's a style entirely inappropriate for a cartoon history of the Supreme Court, at least the authorized Rehnquist version. Visitors to my law school office may notice a postcard of this Mark Beyer work near my door:

Actually, the more I think about it the more I'd love to read a cartoon history of the Supreme Court illustrated by Mark Beyer. That postcard could represent one of the Justices, hard at work at his desk, haunted by the criticisms of the other Justices (at the left) and worried about the fate of the litigants (on the other side of the window).

C'mon Chief, take a chance! We know you love art from the fact that you told the NYT that if you hadn't become a Supreme Court Justice, you would have liked to be an architect or a symphony conductor ... and from the stripes on your robe (photo from the NYT):

March 5, 2004

Mysteries. I'm just beginning to explore the mystery of getting an image to appear on this site. I had thought I couldn't do it, but that U.N. flag gave me hope. Please, St. Teresa, help me:

That picture of St. Teresa is from an article in The Economist about scientists studying the brain activity of nuns, using positron-emission tomography and functional magnetic-resonance imaging, to "identify the brain processes underlying the Unio Mystica—the Christian notion of mystical union with God." The scientists have a hypothesis that this mental state has something in common with out-of-body experiences and even phantom limbs and the capacity of mescaline to "inspire feelings of spirituality or closeness to God" in anyone. If they are right, shouldn't we all be entitled, as a matter of religious freedom, to use mescaline?

What country are you? I took the what country are you test. In fact, I originally posted their little image thing of the results, but then I decided I really didn't need a big turquoise United Nations flag on my blog and deleted it. Oh, what the hell! In a way, I actually agree with the result, not because I'm a huge U.N. fan, but I do actually believe/hope that reason and dialogue will save us all, eventually. So here it is:

You're the United Nations!

Most people think you're ineffective, but you are trying to completely save the world from itself, so there's always going to be a long way to go. You're always the one trying to get friends to talk to each other, enemies to talk to each other, anyone who can to just talk instead of beating each other about the head and torso. Sometimes it works and sometimes it doesn't, and you get very schizophrenic as a result. But your heart is in the right place, and sometimes also in New York.

3. A question actually posed by a NYT writer: "Why shouldn't movie moguls get their groove on wearing $2,300 sweaters handmade in Scotland and adorned with elegant motifs like skulls with Mickey Mouse ears, marijuana plants or French phrases inviting observers to perform on one's person acts whose names cannot be printed here?"

4. Kudos to Neil MacFarquhar for thinking of an adjective to precede "clad" other than "scantily." For decades, writers have searched their minds for an alternative and now, finally, a solution: "skimpily clad." (Read the article, too, to learn how "Abdel Hakim, a strapping young Saudi, kissed Kawthar, a raven-haired Tunisian beauty, and all hell broke loose." It's about reality TV in the Mideastern milieu.)

5. When friends couple for purely economic reasons: a letter expanding on the current marriage debate. I raised some similar points here. Can two platonic friends marry just so one can get the other's health insurance benefits? Sure, if they are a man and a woman.

6. Goodbye to Stephen Sprouse, who "served guests his famous Bloody Marys in measuring cups and [whose] address book consisted of writing phone numbers on his arms with his ever-handy felt marker."

[Later:] "Last Monday's effluvia of the Nine Great Minds is worse than most. ...As I watch this batch of mediocrities function I fear for the Republic. It would be hard to add up two total Supreme Court-caliber men out of the whole nine of them."

"Effluvia"? Hey, I used to have the word "effluvia" over there in my blog description but I changed it to "various random items" to avoid being offputting when somebody said they had to look it up.

I thought you said you were going to lunch? Yet here you are still yakking about The Apprentice! Class is over, it's Friday, the morning paper isn't read, there's a Friday-level crossword puzzle to be done. Go to lunch! Go to lunch! .... Remember when Omarosa wanted to go to lunch? .... Go to lunch!

For all you "Omarosa suing" Googlers. Folks, I did a Nexis search and found no articles about Omarosa suing. Here's something to read though. It's a USA Today article about last night's show discussing problems real-world employers would have if they fired people as harshly as Trump does on the show.

USA TODAY expert Earl Stafford, CEO of Unitech, says it's possible to fire people in such a way that, given time, both sides respect each other. Trump says he has fired people in many different ways. "They hate you the next morning and forever after."

He said the firing of Omarosa Manigault-Stallworth in Thursday night's episode was a "vicious deal" and may have led to a lawsuit in real life. "You can never let a lawsuit get in your way of doing what's right."

Don't you think if Omarosa were really suing, USA Today would not have referred to "a lawsuit in real life" like that?

The article goes on to say:

Trump says fired employees have sued him on occasion. "I usually win. If you're willing to take it to the end, juries aren't sympathetic to people who say you destroyed their lives. They'd much prefer somebody go out and get another job."

In another legal development, again according to USA Today, Trump "says he has trademarked the words 'You're fired.'"

Private letters of a private man. I haven't had time to read the morning paper yet. First things first: I had to tend to my blog (and tell the world what I think of The Apprentice) and get my thoughts in order for my Conlaw1 class that meets at 11 (the historical development of commerce clause interpretation). But once class is over, despite the gloomy weather today, I plan to walk down to State Street, get a latte and a sandwich, and plunge into today's NYT. I especially want to read Linda Greenhouse's writing about the Blackmun papers.

I'm starting to get a queasy feeling about some of what I'm reading. Much as I love to know the background to the cases I've studied for so long, the behind the scenes wrangling I've always speculated about, I think it's not quite right to be revealing private letters and notes so recently written, many by persons still living and still active on the Court. I quoted a letter from Justice Souter yesterday, because I found it touching and charming and eloquent, but, really, I don't think it's right that Souter's private letter is available for everyone to read. Souter is a mysterious character and in fact that letter seems to reveal his strong feeling about maintaining the mystery about himself. I can imagine a person committing some wrong that might make us think it's a good thing to deprive them of the private zone they have claimed for themselves, but nothing of the kind can be said about Justice Souter. The man is entitled to be the mystery he chooses to be. Sorry if I added to the deprivation of privacy yesterday, but the letter was in the NYT.

"Drama Queen." Prof. Yin, whose blogging veered over into orange backup territory this week, says he's going to miss Omarosa. Yes, she was powerfully entertaining. So was Sam. But both of them had a way of making everyone else's behavior into a reaction to them. It will be good to get a chance to see how people act without the distortion of reacting to Omarosa/Sam.

Miss Alli at Television Without Pity is totally in love with last night's episode. ("Okay, if you're not watching this show? You must start. You simply must start. Although honestly, you must start like two weeks ago, so I'm already sad you didn't.")

Meanwhile, I keep finding people coming to my blog after Googling "Omarosa + suing," so I guess I better find out what that's all about so as not to disappoint people. Especially, now that writing that will cause my site to come up even higher when they Google that. I'm thinking she's trying to sue her way back on the show or collect some cash on the theory that they aggravated her concussion by pressuring her to work for 48 hours straight without a sit-down lunch break. She shouldn't sue though. Omarosa don't sue! Don't you realize millions of people find you immensely entertaining? You could have a whole reality show built around you--I'd call it "Drama Queen"--but who will want to deal with you if you show yourself to be all litigious?

Trump bonds with Heidi. Did you notice, in the boardroom scene on The Apprentice last night, when Heidi rolled her eyes at one of Omarosa's haughty remarks, Trump smirked a little smile at Heidi? He felt like rolling his eyes too, but resisted that. Another thing I think Trump is resisting in the boardroom, which Heidi also resists in the boardroom, is using what Omarosa calls "the F-bomb." Heidi uses the f-word on the street all the time, of course. When Omarosa primly cited swearing in her effort to get Trump to fire Heidi, did you see the big laugh from the usually impassive Carolyn? Carolyn must know that Trump swears all the time around the office, making Heidi a much more appropriate apprentice.

Great Trump quote:

"By the way, all my life, I've been hit in the head with plaster."

He doesn't like complaining--and exaggerating (when did the bump on the head become a concussion?). And crying has not been a good technique. Bursting into the boardroom, unbidden, because you want to display the tears while you've got them going about as good as you think you'll be able to--that was really bad technique.

Anyway, nice to see Kwame get some camera time. I can see why he hasn't gotten much time before. He's cool and sensible and circumspect. He says just enough and it's well thought out. That's great technique.

I love Carolyn. Aside from looking just perfect, she almost always has an expression on her face that is calm and composed, but seems to convey that she sees and knows everything. When occasionally she gets an expression, it's wonderfully effective, like when she looked with disgust at the picked-over food in the losing team's gallery.

Anyway, great show. Great editing and sound effects foreshadowing the problems the team would have trying to sell the creepy looking art. Hope all the artists, chosen and unchosen, get a boost in sales from the appearance on the show. I'm sure they will. How many people does Meghan need to like her? Millions watched the show. Even if 99% were appalled, if .01% of the nonappalled 1% are interested in buying, she has it made.

March 4, 2004

Harlan, entertained ... Souter, not so much. Two things I enjoyed reading in Nina Totenberg's NPR reports on the Blackmun Papers (available through SCOTUS here). The first one is Blackmun, in his oral history, describing the Justices and clerks viewing pornographic films to determine whether they were obscene:

I remember one time Justice Harlan was there, sitting with his law clerk up front. Of course, his eyesight was almost totally gone, and it was hard for him to see. I sat right behind him, and as the film moved on--and they were all alike // he'd lean over and say to his law clerk, "and what are they doing now?" and the law clerk would describe it and Justice Harlan would say, "You don't say, you don't say."

The second is a written message from Justice David Souter, explaining why he was declining to go to a speech Blackmun recommended:

"I know you get a kick out of these things, but you have to realize that God gave you an element of sociability, and I think he gave you the share otherwise reserved for me."

Double feature suggestion: Decasia. If you take my advice and see Wisconsin Death Trip, may I suggest that you make a double feature of it with Decasia? Both films are quite short. Both are inventive reuses of photography. WDT reenacts old photographs (see previous post) and Decasia takes scraps of decaying old silent era films and edits them together to make a rather abstract feature-length visual accompaniment to a strange and beautiful symphony.

The boiling defects in the dying film interact with the original photography making new images, outside of their original contexts. It's quite dreamlike and fascinating and disturbing--and absolutely fitting to the music. You should see it.

Wisconsin Death Trip. The recent film, Wisconsin Death Trip, newly available on DVD, is a dramatization of the book of the same title that was published in the early 1970s. The film takes the newspaper articles from the book as its voice-over script, and, using the style of the period photos from the book, silently reenacts the stories from the old articles, which all tell strange, sad, or violent tales of happenings in Black River Falls, Wisconsin in the 1890s. (LOTR fans--and others--may be interested to know that the voiceover actor is Ian Holm.)

Is there something especially morbid and sick about Wisconsin? As a person living in Wisconsin, I had to wonder if the book was picking on us, or, no I didn't really, because there is always the out for us here in Madison to say Madison is an island of difference within the state. But I knew this film was well regarded, and when I saw yesterday that it had arrived in the mail, I immediately sat down and watched it through. It was quite beautiful and original visually and quite moving and full of fascinating characters (like Mary Sweeney, a cocaine-sniffing woman with a mania for breaking glass). One could see the film as expressing the idea that in bad economic times, in desolate places, people go mad with despair. Or one could see it as saying that in some very specific times in very specific places, people just go off-the-scale weird.

Here's my interpretation. We tend to think of Wisconsin as a notably healthy, wholesome place. (Notice the characters in movies who say they are from Wisconsin: Annie Hall, Jack Dawson in Titanic, etc., etc.) So I am thinking: to show the dark side to Wisconsin is to say something about the dark side of humanity. This story of Black River Falls in the last decade of the nineteenth century is (as presented through the film, if not the book) a universal story of passion and violence and death and madness.

UPDATE: Another wholesome thing set in Wisconsin, which I only know because I did the NYT crossword puzzle today, is the TV show Happy Days. Wisconsin Death Trip could have been called Unhappy Days.

Titanic and Lord of the Rings--another connection. I noted here that LOTR fans ought to have a special regard for the cast of Titanic because it starred Kate Winslet, who appeared in an early Peter Jackson film, Heavenly Creatures. (HC is one of my all-time favorite films, by the way.) A reader writes in to note another connection between the Titanic and LOTR casts: the captain of the Titanic and the King of Rohan in LOTR were played by the same actor, Bernard Hill.

"From a progressive viewpoint." I wondered a few days ago about how or whether a lawprof asked to speak to the American Constitution Society as opposed to the Federalist Society about a new Supreme Court case ought to tailor her presentation in some particular way. I was asked by ACS to speak about Locke v. Davey, which I did yesterday, having prepared essentially the same talk I would have given to the Federalists except with some differences about how to draw the audience into the issues. I was a bit surprised in the preliminary portion of the meeting, which was administrative and organizational, that the audience was told that the ACS presents speakers who talk about law "from a progressive viewpoint."

Well, I thought, when you asked me to speak and I inquired whether there was any particular way I ought to think about addressing the group, I was told there was not. If I had been asked if I would like to talk to to the group about Locke v. Davey "from a progressive viewpoint," I would have said no. If I had been told in answer to my inquiry that I should know the audience would be expecting to hear a presentation "from a progressive viewpoint," I would have said: maybe you should look for someone else, I don't want to disappoint them, but I'd be happy to talk about Locke v. Davey in a way that takes account of the fact that the audience is composed of persons with progressive viewpoints who like to hear about provocative issues that they will want to think more about.

I can't help suspecting that students just assume a professor will be speaking "from a progressive viewpoint"!

The Chief, myself, and maiden names. Chief Justice Rehnquist once passed this note, along the Supreme Court bench, and revealed a long-held secret:

"I was once William D. (Donald) until I changed my middle name in high school to H (Hubbs — my grandmother's maiden name)"

Hmm... I once toyed with the idea of going back several generations to a maternal line surname as a feminist statement, in recognition of all the maternal names that get lost along the way when people marry and don't choose to keep their maiden names. Althouse is my maiden name, but my father's name, unsurprisingly. (In fact, even my middle name is my father's middle name, for reasons I could explain, but won't pause to do here.) One of the benefits of going back along the maternal line is that I planned to stop at the one that I just liked best as a name. I ended with a choice of Battersea and Holocker!

So, I wonder what the Chief's motivation was. Is there a feminist angle or, more likely, a beloved grandmother, or just a distaste for the name Donald?

The new Eighty South Street Tower is making Herbert Muschamp think about:

1966 and the helium-filled Mylar "Silver Cloud" sculptures that Andy Warhol presented that year at Leo Castelli's gallery. ... I mention Warhol because of the atmosphere of freedom those ridiculous silver pillows created around them. They were a child's garden of existentialism - bits of nothingness, faintly stirring in the breeze of gallerygoer conversation. Still, there was a precision to them: Warhol would go in and adjust the little lead weights attached to the corners so that they would float in midair. And they were balanced, in the rear gallery, by the wallpaper with those silly pink cows.

How did it happen that 1966 suddenly appeared to be encapsulated by the fleeting whimsy of silver clouds and pink cows?

Dr. Damasio, a neurologist, has achieved renown by challenging our lingering tendency to regard reason and emotion as polar opposites. Science suggests otherwise. Dr. Damasio, like Freud and Nietzsche, regards these faculties as necessary partners in a dialectic intent on freedom from debilitating habit.

The book will not sit well with those who think that architecture is an art of people-pleasing. Spinoza's scheme of things was undeniably elitist. Only those with disciplined and educated intellects, Dr. Damasio writes, could accumulate sufficient knowledge and reason to put their intuitions to constructive use. But this path toward freedom is accessible to all who would make the sacrifices it entails.

Eighty South Street Tower conveys the idea that an entire city can embark on such a path. That is the design's great gift. This idea is transmitted in the design's perfect balance between the familiar and the unexpected. We recognize the similarity of the individual glass cubes to International Style office towers of the mid-20th century. But we have never seen one of those towers dance.

Calatrava can put together the forms and Muschamp can put together the ideas. I love Damasio (as I've said here) and Warhol and Calatrava, and--what the hell?--even Spinoza, Freud, and Nietzsche are excellent companions if they know their place. In any case, all hail Muschamp for mixing up the most delightful collection of names in a single piece about a really wonderful building that adds to the measure of happiness in lower Manhattan.

Talking to Nina and Tonya via the entire world even though I could just go down the hall and see them in person. First, Nina reports a conversation (with me/a fictionalized version of me/someone else entirely) about revealing personal facts in a blog. Here's an excerpt:

[Interlocutor:] Your blog is so personal, I could never blog in that way ... I would never say where it is that I am traveling..

[Nina]: ...that is completely impersonal! I write travel stories on the side, that’s how impersonal travel is in my mind. ...

My reason for not wanting to talk about where I'm traveling until after I've returned is that I don't want strangers to know when I'll be away from home. I thought you weren't even supposed to say you were going away in a public place, where people could eavesdrop, and that you were supposed to cover your name and address on your luggage tags so that people couldn't pick up that information in airports and elsewhere. So announcing your absence to the whole world definitely seems out of the question. Why not tell everyone where you hide your extra keys? For the record, I never hide extra keys, I never leave my house, and if I ever do, you may rest assured the whole place is wired with spring guns and there are several underfed pit bulls roaming about.

Now, Tonya has joined the enlightened, competent TV watchers by getting a TiVo, which she loves but is also concocting conspiracy theories about. Her TiVo is hard at work filling up the 80 hours of hard drive space with shows and she's wondering why it's picking things like Spanish language shows, self-improvement, crappy sitcoms and other things that don't seem much like what she chose for herself. She's positing:

Good-hearted TiVo ...

TiVo Knows Best ...

Petulant TiVo ...

Stealth Marketer Tivo...

I have one more idea: Eager-student TiVo: TiVo just wants to learn and it wants you to be the teacher. Rather than making too many inferences from the first few things you've chosen, it's giving you a chance to input more information. Go through the list of recorded shows and give thumbs up and thumbs down. Teach the humble mechanical student and give it a chance to show you how well it learns.

More evidence for my American Idol conspiracy theory. Last night's show gives me more reason to think that the producers, faced with way too many bad performers, deliberately clustered the good ones on two nights (the first and third shows) and the bad ones on two other nights (the second and fourth shows). As I said here, I think they are trying to set up a great wild card show by having some memorable people, like Jennifer Hudson, left behind, as Clay Aiken was last year.

Tiara Purifoy, who does have the coolest name, is the Wisconsin candidate (Miss Beloit 1999!), so I'm going to hope she makes it through tonight. She seems good, even though her performance really was a "mess," as Simon pointed out. People have got to stop singing "I Wanna Dance With Somebody," which must be jinxed. I also would like it if no one ever sang "New Attitude" again. Each of those songs, when sung by anyone other than the vocalist who made it famous, just makes you realize how great Whitney Houston/Patti LaBelle must be.

People may think he's too bland, but he's the only one who sang with charm and taste and understated feeling last night. Stevens loves Frank Sinatra (in his CD player right now is "Come Swing With Me"), big band is his favorite music, and his favorite song to sing is "The Way You Look Tonight." Aw, that's just adorable! Compared to some of the horrific yelling, he seemed quite deserving.

The horrific yelling, however, was pretty darn entertaining in the case of Lisa Wilson, who sang "Come to My Window" (aka "Run as Far Away From My Window as Possible").

Subject lines on email I don't open any more. I'm happy to get email from readers (and will assume you don't mind being quoted, but want to be quoted only anonymously, unless you say otherwise), so let me say a word about subject lines. Too much experience with spam has led me to stop opening email (unless I know the name of the sender) that has no subject or that says: "hi," "hello," "re:" (and then nothing), and a lot of things that sound friendly, but only in a generic way. The more specific the words in the subject line are to things I've actually written about, the less likely it is that your email will get dumped along with "Alecia's" "she'll love it," and "Brett's" "increase your girth" (this "she" will not "love" to increase my "girth," thanks).

How is John Kerry going to keep from boring us to death over the next 8 months? The NYT has some ideas. I can't believe we won't become immediately exasperated with Kerry's oratorical style: at my house we were complaining about it a couple minutes into his acceptance speech last night. That tone, which he uses most when speaking to a crowd, works horribly on TV. The crowd/TV mismatch for Kerry is really as bad as Dean's was (when Dean would yell and growl and scare people). I'd like to see Kerry just take a vacation, a long vacation, maybe two months (four months!) and then come back when we've started to miss him. But I know he can't do that, because the Bush campaign will be--must be--unleashed. But I'm hoping he'll do his speaking in more intimate interviews, where he really does come across well. William Safire writes:

I remember conversations ... over the years with a serious, low-key senator whose thoughtful mien and earnest deliberation belied his down-the-line lefty voting record. I found Kerry to be a nice stiff, not a rigid stiff, who wears and worries well.

You really can warm up to a stiff. Well, it's Kerry's job now to prove that. I think it's true though. I hadn't liked him (or any of the Democratic candidates) very much, and then I watched one of those long, languorous C-Span campaign trail shows where they followed Kerry as he made his way from shop to shop in some small town in New Hampshire. Somewhere along the line, I started really liking him! It was a mystery. Maybe it's a bit like having a stuffy, old lawprof, who seems nowhere near as exciting as the younger, livelier profs, but somewhere along the line, you just start appreciating him.

Note to readers: I'm not committed to either party's candidate.

UPDATE: Wonkette also has some ideas for making the next 8 months interesting, including "Allow Donald Trump to select the vice president via a series of mock-governing contests. (Omarosa's 'White House' experience will finally come in handy!)"

FURTHER UPDATE: Re how long it would take before we'd start missing Kerry, a reader writes: "I can only say you must have a much, much higher boredom tolerance than I do. When trying to figure out how many months it would take before I missed Kerry, I run out of finger and toes pretty quickly, and my gut tells me I'm nowhere near the right number at that point. Maybe I should try again with years, or perhaps decades would be safer."

March 2, 2004

Aubrey Beardsley, Andy Warhol, Janis Joplin. If you clicked on the Oscar Wilde link in the last post, you saw one of the fabulous Beardsley illustrations for Wilde's Salomé. Here's the whole set, at a lovely website. Here's the one I had a poster of on my bedroom wall when I was in high school. My other two posters from that era were of Andy Warhol (from the series of large black and white photo posters that were called, I believe, Personality Posters) and Big Brother and the Holding Company. That was a classic orange and blue psychedelic style silk screen that pre-dated any recognition of Janis Joplin. Boy, I wish I could find that thing somewhere amongst my belongings!

Four days after presiding over a slew of same sex marriages in his quaint Hudson Valley village, the mayor of New Paltz today was charged with 19 violations of New York's domestic relations law, injecting the debate over gay marriages in the state with increasing drama and urgency.

Jason West, 26-year-old Green Party mayor, was ordered to appear in court Wednesday to answer charges that he broke state law by solomizing about two dozen weddings without a marriage license, according to New Paltz police and West's lawyer.

Solomizing??? Is that some combination of solemnizing and sodomizing? With perhaps a dash of Salomé, presumably the Oscar Wilde version.

And, yeah, it's awfully harsh here to take the criminal route. On the other hand, litigating the issue when faced with a criminal charge (with a possible one year sentence) might make the gay marriage cause more sympathetic than it would look in a civil suit.

Reading your archives yesterday, I saw that back in January you experimented a bit with names for your blog, and settled on "Althouse." I'm sure the decision is now long behind you, but for some reason in the shower this morning I had an idea: you should call your blog "alt.house" (alt-dot-house), which simultaneously (a) uses your name, (b) uses "house" more directly to suggest a place, (c) is a cyber-pun, riffing on the old "alt-dot-whatever" names for usenet newsgroups, and, relatedly, (d) with the "alt" prefix, implies the ever-so-slightly offbeat nature of what you write about and how you write about it.

The original name for the blog was Marginalia. The reason for abandoning it is that someone else had already used the name for a blog. The reason for originally picking it is explained here, which is the first post ever.

UPDATE: Another missed opportunity, even more belatedly recognized. Prof. Muller's message was the perfect set-up for a menopause joke!

UPDATE WRITTEN 9/4/04: I cannot understand my own update. I have no idea what "menopause joke" was once within reach! If I were writing this post today, I would have commented on the fact that Prof. Muller was thinking about me in the shower! But menopause? What could that possibly have been? And I write the update as if any reader, given a little prod, will see the joke. Ridiculous!

UPDATE WRITTEN 5/24/07 (as I'm going back adding labels). Actually, now, I easily see the joke: "Althouse" is menopausal compared to "Alt.house" because it doesn't have its period.

That DNA thing again. I wrote the other day about how journalists have been repeating a drastically wrong statistic about DNA exonerations that John Kerry used during the California debate last week. One of my readers wrote to Slate about William Saletan's praise for Kerry's use of this statistic, on the theory that Slate would want to correct the underlying error. Saletan, unlike some of the other journalists, did not actually repeat the bad number, but he did say:

The DNA stuff is good, too: As an argument against the death penalty, the risk of executing innocent people polls much better than moral absolutism does.

Saletan wrote back (and gave permission to quote on this weblog):

I'm happy to correct anything I wrote that's wrong. I don't see anything that I wrote here that's wrong. Your problem seems to be with the number Kerry used and I didn't, so I think Kerry's the guy you need to ask for a correction.

To me, this seems to concede that all journalists do is comment on how everything sounded, rather than to try to figure out whether the actual positions are sound. Also, I can't help thinking that they would have eagerly exposed outrageously wrong assertions of fact if Bush had made them or if a supporter of the death penalty had relied on a statistic that was off by a factor of ten. Saletan does have lots of good and bad to say all around, about all of the candidates, and I do understand that it is awkward to come back to an old piece and raise some secondary point about it. And anyway, Saletan was just making suggestions on how to "poll much better," and not on how to get to the truth about anything.

But really, what gets me in all of this DNA business that I've gotten myself involved in talking about--and I don't have an agenda one way or the other on the death penalty right now--is that people don't notice when facts sound really wrong. Why doesn't a little mental alarm go off and make you think: that doesn't sound right, could that be true? We get so wrapped up in the theatrics of the campaigning and the rhetorical maneuvers in the debates, which seem so interesting to talk about. But why don't we care more about the actual content? If someone said 38 times 46 is 180 thousand, you would know the math was wrong, even if you didn't have the exact right answer in your head. You'd never just repeat the assertion as if it were true. Why don't we have more of a sense of what is true about the real world? And how can we trust ourselves to judge the candidates unless we have some grounding in facts?

Titanic vs. Lord of the Rings. Prof. Bainbridge is responding to my challenge about whether, if there were an ensemble acting Oscar, LOTR would have won it and neither Titanic nor Ben Hur would have, thus making LOTR the biggest Oscar-winning movie ever, with 12, not just 11.

Bainbridge points out that LOTR won the SAG ensemble acting award, but Titanic didn't. The Full Monty did!

I realize now how complex this what-if question is. Bainbridge points out that the SAG ensemble award may be essentially its version of best picture: SAG only gives acting awards, so ensemble works as a way to recognize the whole picture. If that's so, and if the Oscar voters tracked the all-actor SAG voters, we could infer that the ensemble Oscar would have gone to Titanic. But it is a different group of voters, as we can tell from the way the Oscars didn't care at all about The Full Monty.

Bainbridge also theorizes that an ensemble award would be used to honor casts in movies that did not feature one or two dominant stars, that is "true ensembles." Voters might conceive of the ensemble award as a way to make up for the fact that films with large crowds of actors don't have a fair shot at the individual actor awards. Clearly, LOTR had many great actors in it, but they were in relatively small roles. But small roles can earn supporting actor awards, and it's notable that no one even had a nomination in a supporting category.

I can't speak for Ben Hur, because I've never seen it, but I'll accept that Charlton Heston was an overriding star there, and maybe the cast of thousands types would not seem to deserve any recognition.

But how about Titanic? Bainbridge says look at the posters: it's all about Kate Winslet (the sublime Kate Winslet, whom true Peter Jackson fans will love from Heavenly Creatures) and Leonardo diCaprio. But what about Kathy Bates (people love her), Victor Garber (the New Yorker thought he was the best thing in the film), Billy Zane (an acquired taste), David Warner (you want an English actor of long reputation, look at this), Francis Fisher, Jonathan Hyde (deliciously evil as Ismay), Bill Paxton, and the beloved old actress Gloria Stuart?

I say it would have won an ensemble award. What was the real competition? Not The Full Monty. Not Boogie Nights (because of the subject matter). Maybe L.A. Confidential. Considering the extreme love of the acting in Mystic River, I'd say that the ensemble award for Titanic would have been more likely than for LOTR.

UPDATE: Christopher Althouse, who's a devoted student of film, writes: "I think Titanic and Ben Hur would both have won ensemble awards, and to the extent that they could have not won, I don't think it's a given that LOTR would have won."

Federalist Society vs. American Constitution Society. We have both the Federalist Society and the American Constitution Society here at Wisconsin. Assume one or the other group asked a lawprof to speak to them about a new Supreme Court case, for example, last week's Locke v. Davey, which I discussed on this blog here, here, here, and here.

Should the lawprof give the same talk to either group, or is there some different approach that should be taken? I'd really like to know. Email me if you know enough about these two groups to have a useful opinion on the subject, and let me know if I can quote your email, with or without your name, in this blog.

March 1, 2004

Would LOTR have broken the Oscar record if there were an ensemble acting award? I've written before that I love the ensemble acting SAG award. Today, Prof. Bainbridge writes that if only there were an Oscar for ensemble acting, Lord of the Rings would have not just tied the the record for most Oscars with 11, but beaten it with 12. But wouldn't the other two movies with 11--Titanic and Ben Hur--also have deserved the ensemble award?

In Titanic's year, 1997, the key competition for acting was As Good as It Gets (which won best actor and actress and had a nomination for supporting actor), and Good Will Hunting (which won best supporting actor and had a best actor nomination), as well as Boogie Nights, L.A.Confidential, Wings of the Dove, Wag the Dog, and Jackie Brown (each of which only had one nomination, but had an excellent cast). Titanic had two nominations, and a big and excellent cast. Who knows which film would have gotten the ensemble? Quite possibly Titanic. But, wow, was that a better year for movies than last year!

In Ben Hur's year, 1959, Ben Hur won best actor and best supporting actor. The key competition was Room at the Top (which won 1, and had 3 nominations), Anatomy of a Murder (with 3 nominations), and The Diary of Anne Frank (which won 1, with 2 nominations). There was also Suddenly, Last Summer (with 2 nominations), Pillow Talk (2 nominations), Imitation of Life (2 nominations), and, what appears to be the best movie of the year, and possibly the best movie ever made, Some Like It Hot (only 1 nomination--for Jack Lemmon). Good reason to think Ben Hur would have won. Again, a way better year than this one!

UPDATE: More discussion above. And I've deleted the links for 1997 and 1959, so you'll have to take my word for it that I got this info from the Academy Awards website, which didn't preserve the results of my searches and doesn't have any pages I could find that just lists the historical information. How annoyingly unuseful that site is! Don't go there. I couldn't find any site that listed the awards systematically by year. I guess AMPAS is hoarding the info. One more reason to be irked about the Oscars.

FURTHER UPDATE: I've got new links for the two years, at IMDB, so go ahead and check the years.

Is it unethical for a documentary to exaggerate ambiguity for artistic effect? Harvey A. Silverglate and Carl Takei, writing in Slate, seem to think so:

[T]he makers of Capturing the Friedmans made a studied decision to minimize the historical context of the charges for the sake of drama. Had the filmmakers placed the case in full perspective and included the overwhelming evidence they had uncovered against the prosecution, the movie would have been less evenhanded but perhaps more responsible. Jesse spent 13 years in prison for crimes that almost certainly never occurred—and to which he was forced to plead guilty because the hysteria of the moment made a fair trial impossible. Jarecki continues to maintain that if the film had been less evenhanded the audience would not have thought deeply about where the truth lay. We think, however, that Jarecki underestimates his audience.

Silverglate and Takei are missing a key point about art. This is understandable, as both are involved in working to help persons they believe are falsely accused, as they note in their article. What they are missing is that the filmmaker (Jarecki) made a work of art about the unraveling of a family, showing the family's experiences as they were recorded at the time on home video. It is true that another documentary could have been made about the problems of false confessions and so forth, problems that the movie includes but with less development than Silverglate and Takei would like to see. A documentary of that kind might have run on TV, but would probably not have been released as a feature film, especially these days, since the hysterical period of tainted memory recovery is far in the past and has already been widely covered. By making an artistic documentary from a new perspective, with new techniques, and drawing the viewer into a painful mystery, Jarecki reached a new audience and stirred up new feelings about this old issue. Of course, the people in the audience were capable of understanding the documentary Silverglate and Takei would have preferred, but such a documentary, powerfully advocating the case of the accused, would not have drawn much of an audience at all unless it found some other entrancingly artistic approach to justify paying for and sitting through a feature film.

Importantly, the success of the film made it possible to release a high-profile DVD containing much of the extra material Silverglate and Takei wish was in the film.

UPDATE: David Bernstein (at the Volokh Conspiracy) has a post discussing the film from the perspective of an evidence lawprof.

How to watch the Oscars competently. Let me say that I do know how to watch the Oscars more effectively, using TiVo. You record the E! red carpet show with Joan Rivers and have a couple hours of that stored up. Then you TiVo the Oscars broadcast, but don't start watching it until a half hour or an hour after it begins. Even two hours, really. Then you watch the TiVo'd Oscars show, skipping to points when awards are announced, skipping all award acceptances by anyone who isn't either an actor, a writer, or a director, skipping all songs and commercials. If you catch up to the live broadcast, just fill in with the red carpet show to let the live broadcast get out ahead of you again.

I've used this method in the past. Why didn't I use the TiVo method last night? To oblige a family member. The excitement of live-ness was a big issue. And I do understand this feeling. When you use the TiVo method you experience a heightened awareness of how little anything is really going on, which may make you think it isn't even worth watching at all. The who-cares realization can actually ruin all the fun. Except it was not fun at all last night!

The dreadful Oscars show. The Oscars show was even duller than the SAG Awards. Was there even a single surprise? Billy Crystal's return reminded me of some of the sad returns Lucille Ball made to TV in her waning years: she was doing the same sorts of things that used to be so funny, but now it just seemed wrong for her to strain herself to do it. Crystal seemed to want to throw out lines about current movie happenings, but how much comic traction can you really get out of "The Passion of the Christ"? Everyone seemed afraid of offending, as if they were all massively overshadowed by Janet Jackson's epic breast. Only Errol Morris said anything with any political sting, and his speech revealed that his true outrage really lay more in the area of the way the Academy has been slighting him all these years. (Of course, he was right about that, but it wasn't all that lovely for him to be the one saying it.) Tim Robbins restricted his politics to concern about child abuse, and Sean Penn only made an oblique reference to WMD. Nearly everyone just thanked people endlessly, tediously. Then more time had to be wasted, lamely, by having Jack Black and Will Ferrell sing about how the thank you speeches are boring. And, oh, the songs, those songs-non-songs that extend the already horrible longueurs of the show's midsection.

I had to read about Sean Penn's statement, because I bailed out before he appeared, somewhere in the show's fourth hour, when I calculated all the awards that had yet to be given, and how long I would need to wait for the big four awards. The show was quite simply torture--impossibility of making "The Passion" quips noted--the least entertaining Oscars show in memory. I enjoyed some of the early red carpet stuff: Jennifer Garner had a lovely tangerine dress and Renee Zellweger looked painfully swaddled in white cardboardish cloth. But it was pretty much downhill from there.

Last spring, during a class of 1968 Yale reunion that he held at the White House, Mr. Bush had a particularly striking encounter with Petra Leilani Akwai, who in 2002 had a sex-change operation. At Yale, Ms. Akwai was known as Peter Clarence Akwai.

"I was in the receiving line, I was dressed in an evening dress, and I was being escorted by a male friend from the Yale class of 1986," Ms. Akwai said in a telephone interview this weekend from Germany, where she lives. "And I said, `Hello, George.' And in order for him not to be confused, in case he hadn't been briefed, because our class was all male, I said, `I guess the last time we spoke, I was still living as a man.' "

"And he said," Ms. Akwai recounted, " `But now you're you.' "

Ms. Akwai said the president seemed completely comfortable. "He leaned forward and gave me a little sort of smile," she said. "I thought it was a sincere thing, and it was very charming."

The article believably supports the view that Bush was forced into saying something about gay marriage, because he was "under enormous pressure from his evangelical Christian supporters," but that he is quite uninterested in going back to this issue at all, let alone making it a centerpiece or wedge issue in his campaign.

February 29, 2004

"Clause" not "laws."Transcripts of Thursday's debate get a word wrong in a key spot that seems to be making some people think John Kerry flip-flopped in his opinion about whether the Defense of Marriage Act is unconstitutional. Zachary Roth at CJR Campaign Desk calls attention to the place in the debate where Ron Brownstein of the LA Times questioned Kerry:

Brownstein, asked: "... if the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

Kerry answered, "... I think, under the full faith and credit laws, that I was incorrect in that statement. I think, in fact, that no state has to recognize something that is against their public policy."

[Rothstein] asked the senator why he had opposed legislation in 1996 that would have allowed states to deny such recognition.

Directly contradicting a claim made by Bush, Kerry and Edwards both said the Constitution does not require states to recognize gay marriage licenses granted elsewhere in the country.

Roth's criticism goes like this:

Kerry did say that, but not in response to a question about his 1996 vote on DOMA. In fact, that answer came in response to Brownstein's subsequent question, which was: "If the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

A reader of Pickler's piece would come away with the impression that Kerry answered Brownstein with a complete non sequitur. In fact, Kerry's responses were confusing, but did ultimately make logical sense, if you accept his admission that he now considers DOMA constitutional.

Really, I think that Roth is the one who's confused here, though it's completely understandable, because Kerry was being murkily concise, there was no decent follow-up question, there's a perplexing reference to an "incorrect ... statement," and the printed transcripts contain a mistake. Let me explain.

First, Kerry did not say "I think, under the full faith and credit laws, that I was incorrect in that statement." He said "I think, under the Full Faith and Credit Clause, that I was incorrect in that statement." I can verify that with utter certainty, thanks to TiVo.

The Full Faith and Credit Clause is part of the Constitution, the part that would be used to argue that the state was obligated to recognize marriages of other states. If, as many people believe, the Full Faith and Credit Clause in fact allows states to disregard marriages that offend their public policy, then the states already have the power that the proposed Federal Marriage Amendment purports to give them. DOMA is then superfluous, and so is the proposed amendment.

This means that Kerry could still have the position that DOMA is unconstitutional, and could coherently (though too briefly) be answering Rothstein's question about why the proposed amendment isn't needed. In this interpretation, Kerry's answer was responsive, and he hasn't flip-flopped, but he was not given the time to explain what he was talking about. And the incorrect transcript sure doesn't help!

In any case, the issue is far too complex to explain in a debate setting. (I once based a Constitutional Law exam on it.) If Kerry had actually tried to explain the law here, everyone would have complained that he was insufferably pedantic.

If a man, boldest and most intelligent of creatures, won't wander from place to place, a stranger to all, beholden to none, why would an animal, which is by temperament far more conservative? For that is what animals are, conservative, one might even say reactionary. The smallest changes can upset them.They want things to be just so, day after day, month after month.

Son of a post office worker. John Edwards never tires of saying that he is the son of a mill worker. Why not vary the theme occasionally and say that he's the son of a post office worker? Does the job your father did make you who you are, while the job your mother did is either a side note or the bare fact that you had a working mother? And of course, "working mother" still reads as deprivation, quite the opposite of "working father."

Edwards' official website, by the way, highlights his mother in terms of pie. No, not apple pie, as in the politician's favorite "mom-and-apple-pie." It's peanut butter pie. In fact, they'll send you one for $50.